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Disturbing Changes to The Property Ombudsman Letting Code

Thursday, October 27, 2016 -
By David Smith, Partner at Anthony Gold Solicitors

The Property Ombudsman has made some further amendments to its code of conduct for lettings agents (read here) as from 1 October 2016. This is part of a change to all of the various codes of practice.

There are a number of small changes but there is also one very big change which will have far reaching effects on agents who choose to join TPOS.

This is change to the agents obligations when inspecting tenanted properties. Rule 8f has always required that agents must give notice to tenants before inspections. However, a new phrase has been added to the rule which says that despite notice being given “express consent from the tenant … should be obtained”.

This means that tenants must always give consent for a property inspection and agents cannot rely on assumed consent or telling the tenant that if they do not hear from them they will carry out the inspection using their own keys. The TPO usually seeks evidence of this so it will probably also means that a telephone call from the tenant will not do.

This is hugely impractical and will cause serious issues for agents in cases where the tenant has apparently left but the agent is unsure. It is common in these cases to carry out an inspection in order to see whether the tenant is still there. Naturally, express consent cannot be obtained in these cases and the new code will therefore make inspections impossible. This is far beyond the legal requirement and will cause real problems for some members.

In my opinion, the TPO is heading down an increasingly unhelpful course. It is rapidly moving from a situation where it has a code of best practice which reflects the law and heading toward a scenario where it is seeking to create its own free-standing obligations. This is precisely the kind of things lawyers warn of when codes of practice are created which go beyond the law and become de facto legal obligations in themselves.

It is worth noting that not that the TPO, along with the other letting consumer redress schemes, now have a statutory role as letting agents are legally required to join one of them so they are potentially subject to having their decisions judicially reviewed by the courts. In addition, agents may join any of the three approved schemes and neither of the other two approved schemes have the extensive code of practice used by the TPO. These recent changes may have some agents looking again at the other schemes.

Please note that the views and opinions expressed in these guest blogs are those of the author and do not necessarily represent the views of London Property Licensing. These blogs are designed to stimulate discussion and debate within the property industry.

Note: In November 2016, The Property Ombudsman published further guidance on property inspections for letting agents, in response to this blog. You can read their response here.